At times, criminal defense work requires we attorneys to keep our mouths shut. This is against our nature–we like to talk. But sometimes, saying too much may get your client in trouble. As a practical matter, should a defense attorney tell the prosecutor “Hey, you can’t prove that” when such a statement will permit the prosecutor to cure the defect rather quickly? In the case below, the defense attorney decided to keep quiet about a defect in the prosecutor’s case, and eventually, that silence paid off.

Every so often, I’m retained to defend a misdemeanor battery case, only to discover later that the charge has been upgraded to a felony. This doesn’t happen that often, because law enforcement typically has quite a bit of enthusiasm up front in their attempts to charge citizens with the highest offense humanly possible. Should a felony slip thru the cracks, prosecutors also have the ability to upgrade a misdemeanor into a felony, and there are plenty of reasons to do this. I’m here to tell you that upgraded cases are difficult to prove. To explore a real life upgrade scenario, we’re going to delve into the case of Dolan v. State, 2016 Fla. App. LEXIS 2183 (Fla. 2d DCA 2016).

First, let’s discuss what a felony battery is, versus a misdemeanor battery. In this case, there is no difference, but for the fact that the state accused Dolan of having a prior battery conviction. One prior battery conviction, regardless of whether or not the person was adjudicated guilty or received a withhold of adjudication, and the second battery accusation will be upgraded to a felony (under Section 784.03(2) of the Florida Statutes, there are other ways to get a felony battery, fyi). Ok, so how hard can it be for a prosecutor to prove up a prior conviction?

Dolan’s jury trial was broken into two separate trials, all without the jury’s knowledge. The first part of the trial was dedicated to the prosecutor’s proof of the battery itself. Should the jury return a guilty verdict for battery, the judge would then conduct a second mini-trial for the jury to determine whether or not Dolan had a prior battery conviction. Obviously, this is done so as to not taint the jury’s decision on the facts of the battery case itself. But, when it came time for the state to prove the prior case, a few weird (but common) things happened.

As a general rule, to prove a prior conviction, you’ve got to bring fingerprints. While the jury was out deciding Dolan’s fate on the battery charge, the judge asked the prosecutor how they intended to prove the prior conviction. The “State responded that it had a certified copy of a prior judgment and sentence. The trial court observed that the document did not contain fingerprints.” Hum. Has anyone ever been able to prove a prior conviction without fingerprints? Not that I know of, and not that the trial judge knew of, so the judge “asked the State to provide legal precedent that would support the admission of a judgment that did not contain fingerprints”. Id.

The jury came back guilty on the battery, and when it came time to prove the prior battery conviction, the State presented a certified copy of the prior conviction, and a copy of the booking photo in that case. Naturally, Dolan’s attorney objected, but the judge allowed the photo into evidence. And matters got worse from there. The judge decided to have the booking photo printed from the sheriff’s website, then cut out, and then stapled to the certified judgment. Yes, this is a new procedure for proving prior conviction. Yes, this is going to be overturned.

The appeals court overturned Dolan’s felony conviction on numerous grounds, many of which would bore you to tears–if you’re not there already. The point here is that it can be far more difficult to prove a prior conviction than people think. We defense attorneys cannot just assume that the State will have all of it’s ducks in a row. Dolan’s defense attorney did an excellent job of objecting to every single crazy maneuver performed by both the State and prosecutor in this case. First, it was not proper for the judge to decide whether or not there was proof of a prior conviction, the jury had that job (now, proof of priors for enhancement purposes, like a violent felony offender or a prison release reoffender, those priors can be decided by the judge, but that’s a different issue for a different day).

Second, we have rules governing how to submit public records into evidence. In this case, the State sought to enter a public record found on the sheriff’s website. The admissibility of public records can be found in Florida Statute 90.955, and suffice it to say, none of those procedures were followed in this case. Also, the State asked the judge to take “judicial notice” of the certified prior battery conviction. The problem is, taking “judicial notice” of something still doesn’t permit the judge to make a ruling on such documents, assuming the documents contain hearsay and other such banned forms of evidence. The appellate court in this case noted that, in other circumstances, they have taken judicial notice of entire court files which contained within them a conviction (in a DUI case, for example). But, that’s an entire court file, and even so, “although a trial court may take judicial notice of court records, it does not follow that this provision permits the wholesale admission of all hearsay statements contained within those court records.” Stoll v. State, 762 So. 2d 870, 876 (Fla. 2000).

I’m guessing that Dolan’s defense attorney knew months in advance that the State did not have the fingerprints required to prove felony battery. Had this been called to the State’s attention early on, we wouldn’t be discussing Dolan’s misdemeanor conviction.